COVID-19 stay-at-home and traveler quarantine orders pose enforcement challenges for local officials
As city and county leaders battle the public health crisis with COVID-19, they are also facing unprecedented enforcement challenges that could have ripple effects on their local communities and economies far beyond the current pandemic. The key to navigating these issues for many local officials is a combination of awareness and communication—knowing the fast-moving issues that are evolving elsewhere in the country and communicating clearly and often in a way that helps the public make sense of the new rules.
On March 19, 2020, California was the first state to issue an order mandating all residents stay at home. Exemptions were made for individuals and businesses performing essential duties or operating within the scope of activities outlined in the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency’s (CISA) guidance. Now, approximately three weeks later, nearly every state has issued some version of a stay-at-home order. Many states have followed California’s model and adopted the CISA guidance, oftentimes also exempting a limited number other “essential businesses,” while a handful of other states have opted to create their own ad hoc list of essential businesses. A common thread among all of these orders is a set of provisions restricting group gatherings, mandating social distancing, and listing a limited number of permissible activities that may be performed outside the home.
More recently, over a dozen states—particularly those not yet overwhelmed by COVID-19 cases—have imposed quarantine orders that require or ask individuals coming into the state from other countries, regions, or states to self-quarantine for at least 14 days.
Most of these stay-at-home and quarantine orders provide some type of penalty for violators, typically fines or the threat of short-term imprisonment. But some states have provided for other sanctions in addition to these standard penalties. In Pennsylvania, non-compliant businesses are not eligible for the Commonwealth’s disaster relief funding and may lose loan or grant funding, while D.C. and New Mexico have threatened revoking businesses’ licenses.
Enforcement as part of transparency, education and two-way communication
With many of these stay-at-home and traveler quarantine orders extending through April and into May, states and localities are faced with deciding how to enforce these evolving orders. With resources already stretched, governments can deploy enforcement resources strategically to complement public outreach efforts and enlisting community support in achieving the public health goals behind the COVID-19 mitigation orders.
This means prompt release and wide dissemination of information about the stay-at-home and quarantine orders and also providing a means for receiving and responding to community questions and feedback. Many jurisdictions have pre-existing or newly-created hotlines or email addresses for citizen inquiries, which are laudable channels of communication with the general public and local businesses. But in times of crisis, these channels can become clogged. To address that, several states now maintain regularly-updated online COVID-19 FAQ pages as an effective way to answer popular questions quickly and broadcast information to a wide audience. Similarly, some states have provided specific online portals for businesses to seek clarification about whether their operations are “essential” under a state’s closure order or whether they can receive a waiver to operate in appropriate circumstances.
Enlisting community support and engagement also leverages enforcement resources. Social pressure on would-be violators is effective, and providing community hotlines and email portals to report violations allows law enforcement to best target its efforts. St. Louis County, Mo. officials sent letters to approximately 50 businesses to warn them to close. In light of numerous nonessential businesses defying its closure order, the City of Los Angeles threatened to shut off water and utility service to violators.
Many jurisdictions have provided specific guidance to law enforcement, directing officers to leverage community policing techniques and relationships, first focusing on education and warnings before proceeding to citations or even arrests.
But with infection rates on the rise, states and localities are not only making arrests, but publicizing the arrests of notorious and blatant violators to demonstrate that the orders are not guidance, but mandates. Police in New Jersey and Maryland had to break up large “corona parties” – large gatherings violating social distancing directives. In a well-publicized case in Florida, the Hillsborough County sheriff and prosecuting attorney issued an arrest warrant for the pastor of a large church who, despite several warnings, defied the county’s ban on large gatherings in holding multiple church services with hundreds of congregants. In Los Angeles, four stores were criminally charged for remaining open even though they were deemed “nonessential.” The names and address of the stores were publically released by the city attorney’s office. Each enforcement action can serve as an opportunity to educate the public and put others on notice.
More challenging is enforcing the self-quarantine orders on travelers from other states. For example, Rhode Island initially issued a quarantine order focused only on New Yorkers, and succeeded in drawing widespread attention when police reportedly pulled over drivers with New York license plates to inform them of the self-quarantine requirements. But after receiving pushback from New York officials and the ACLU, the state amended its order to apply to all out-of-state drivers.
Texas requires individuals driving into Texas via roadways from Louisiana and air travelers arriving from certain states to complete forms listing, among other things, the place the individual will quarantine. Although the order implementing this measure warns that Texas Department of Public Safety special agents will conduct unannounced visits to ensure individuals are complying with the quarantine, to date there have been no reports of such quarantine enforcement patrols in Texas or elsewhere. That might be just as well as such enforcement efforts would require extensive resources with little measurable effect.
These developments and enforcement strategies will continue to evolve around the country as states learn from one another how to best mitigate the pandemic. As city and county officials wrestle with tough decisions about how to approach the enforcement of quarantine orders, it is critical that they track and understand these developments and communicate their approaches to the public so that the public can join the fight for the greater good.
Kelly T. Currie, is a Crowell & Moring partner and former Acting U.S. Attorney and Chief Assistant U.S. Attorney for the Eastern District of New York. Tyler Brown is an associate at Crowll & Moring and a member of the firm’s government contracts and international trade groups.